Metropolitan News-Enterprise


Wednesday, July 8, 2015


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Ninth Circuit Panel Revives Students’ Claim That Bias Infects Arizona Ethnic Studies Law


From Staff and Wire Service Reports  


A claim by Tucson students that an Arizona law restricting the content of ethnic studies courses deprives them of equal protection of the laws and freedom of speech should not have been resolved on summary judgment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

While upholding portions of a ruling by Ninth Circuit Senior Judge A. Wallace Tashima, sitting by designation in the District of Arizona, the panel said the plaintiffs presented enough evidence to obtain a trial on their claim that the 2010 law was enacted, at least in part, with discriminatory intent.

The panel noted that the state’s former superintendent of public instruction made his support for the law an issue in his successful campaign for attorney general, and found the Tucson district in violation of the law even before it took effect. They also noted that his successor endorsed the finding of a violation within days of taking office, then retained an independent education consulting firm to conduct an audit of the program, rejecting its finding that the district was complying with the law.

Those facts, along with statements by supporters of the bill specifically targeting the Tucson district’s program, “raise at least a plausible inference that racial animus underlay passage of the legislation,” U.S. District Judge Jed Rakoff wrote for the court.

Rakoff, from the Southern District of New York, sat on the panel by designation.

UC Irvine School of Law Dean Erwin Chemerinsky, representing the plaintiffs, told the panel in January that the ban was enacted with a discriminatory goal and should be thrown out. A state assistant attorney general, Leslie Kyman Cooper, denied there were discriminatory intentions, saying the law aimed to end divisive and segregated teaching.

A number of educational, anti-censorship, and Latino interest groups filed amicus briefs supporting the plaintiffs, as did the Anti-Defamation League. The Pacific Legal Foundation supported the state.

At the heart of the challenge is Arizona Revised Statutes §15-112(A), which bars any public or charter school from including in its program of instruction any courses or classes that: (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.”

The Tucson district ended its Mexican-American studies program under threat of losing state funding, but has recently resumed teaching ethnic studies courses.

The defendants—the superintendent of public instruction and the State Board of Education—did not dispute that the law targeted the Tucson program. The impetus, Rakoff noted, appeared to be an incident in which students walked out of a speech by the state deputy superintendent of public instruction, who was responding to a statement that “Republicans hate Latinos.”

Tashima, in his ruling for the lower court, agreed that subsection (3) was unconstitutionally vague and enjoined its enforcement, but rejected the plaintiff’s vagueness challenges to subsections (2) and (4). Those rulings were upheld by the appellate panel, but Rakoff, joined by Senior Judge John T. Noonan, said the plaintiffs are entitled to a trial on their claims that the defendants discriminated against them in violation of the Equal Protection Clause, and that they engaged in viewpoint discrimination in violation of the First Amendment.

Judge Richard Clifton concurred in most of the majority opinion but said the plaintiffs had not presented sufficient evidence to obtain a trial on the issue of discriminatory intent.

“I agree that Plaintiffs should be given the opportunity to present that evidence, but we should not pretend that proof of that proposition is already in the record,” he wrote. “As the record stands ow, there is not enough to justify the majority opinion’s conclusion.”

The case is Arce v. Douglas, 13-15657.


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